Late last week, USCIS issued yet another policy memo that tells officers how they should perform their job. Late last month, officers were instructed to issue Notices to Appear and initiate deportation proceedings for most cases that they denied – negating decades of policy that allowed immigrants a chance to leave voluntarily or find another path to status.

The policy just released now tells officers that they can deny cases without issuing Request for Evidence (RFEs) or Notices of Intent to Deny (NOIDs). USCIS says that this is to cut down on frivolous filings and to ensure cases are properly filed with the correct documentation. On the surface, that sounds okay, but in reality, it’s a horrible idea.  Why?

The memo says if certain required documents or forms aren’t filed with the original application, the case should be denied. Immigration law is complex – for example, when filing for a green card, it’s not just an I-485 that has to be filed, but the I-130 family petition, maybe an I-130A if it’s a spousal relationship, the I-485, the I-864 affidavit of support (or I-864W if you’re filing as a self-petitioner), maybe an I-864A if you’re including the immigrant’s income, an I-765 work card petition and an I-131 advance parole application. The memo specifically mentions applications that don’t have an I-864 included should be denied. It’s only an example, but what if the applicant fails to include a copy of a passport (mere oversight)? The memo allows the case to be denied for that. This memo is punishing people for ignorance. When green card applications cost $1760, shouldn’t applicants be given the opportunity to fix a mistake? It seems to me that USCIS just wants the money without doing the work.

The memo also talks about filing incomplete applications. I think about time-sensitive applications – like asylum that has to be filed within a year of entry or U visas that have to be filed within six months of obtaining a certification. Sometimes required documents are unavailable at the time of filing and have to be added later. Will USCIS deny a case because we were unable to include a copy of a passport because the applicant was getting a new passport issued?

I’ve received numerous RFEs where USCIS asks for documents that were already submitted. I don’t know what happens between filing and an officer reviewing the documents, but mistakes clearly happen. We respond to the RFE and the case moves on. I have to wonder now if those cases would have been denied because USCIS thinks they didn’t have certain documents that are actually in their possession.

The memo gives an example of a waiver that is filed without much supporting documentation. This scares me because getting a waiver approved is already discretionary – were you able to show that a qualifying family member would suffer extreme hardship if you weren’t allowed to live in the United States. Currently, USCIS will evaluate the documents provided (in our cases, that’s typically 350 or more pages), and issue an RFE to ask for additional information to better understand the hardship – or to update the family’s situation (it’s currently taking over a year for waivers to be decided). Extreme hardship means different things to different officers – it’s hard to fully anticipate what an officer will want to see in order to get approval. The RFE gives us insight as to what’s important to that officer and we respond accordingly. Now, applicants and attorneys are left trying to read an officer’s mind when we submit an application.

When combined with the NTA memo, we see how USCIS is doing everything they can to get immigrants out of the country. With it being easier to deny a case without giving people a chance to fix oversights, mistakes, or to address USCIS concerns or mistakes, more and more NTAs will be issued and more people will needlessly be put in deportation proceedings.

Did I mention how overburdened our immigration courts are?? Over 700,000 pending cases with an average case-time of over 700 days – wow.  And that’s now – before these memos are going into effect.

This memo doesn’t impact cases filed on or before September 11, 2018, so if you have a case already filed, rest easy. If you’re thinking about filing a case, I highly recommend doing it before this date. USCIS says people should be able to file cases without attorneys (which I think it a valid goal and should be the case), but when they’re demanding perfection, they’re actually forcing people to hire counsel to ensure the case is a well-documented and as perfectly filed as possible.

USCIS really should change their name. They are no longer about service, but about draconian enforcement. It’s tragic – we are gutting our legal immigration system by disincentivizing people from applying for benefits so they can contribute to our communities, our families and our economy. We will all be worse off because of these policy changes.